United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge
Defendants other than Governor John Hickenlooper, Kimberly
Weeks, Donald Gibson, and Staci Whitehead seek to dismiss
Plaintiff Luke Chrisco's Amended Complaint in part
pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Mr. Chrisco's
claims arise out of his interactions with Defendants during
his incarceration at San Carlos Correctional Facility
(“SCCF”). To the extent Mr. Chrisco's claims
address Defendants in their official capacities for monetary
relief, they are barred by sovereign immunity. Defendants
sued in their individual capacity are entitled to qualified
immunity for ten of Mr. Chrisco's claims. Further, Claim
Three fails to state a viable cause for action. However, at
the motion to dismiss stage I cannot find that Claim Four is
barred by the statute of limitations. Accordingly, I
recommend that the District Court grant in part and deny in
part Defendants' Motion to Dismiss.
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Mr. Chrisco in his Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(1) pursuant to Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995) and under Fed.R.Civ.P. 12(b)(6)
pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678
July 2014 to April 2015, Mr. Chrisco consistently filed
grievances against Colorado Department of Corrections
(“CDOC”) unit staff, supervisors, mental health
staff, and the law library employees. Am. Compl. ¶ 1,
ECF 17. As a result, he claims the staff retaliated against
him, forced him to take psychoactive medication, and
obstructed his access to the law library. Id.
¶¶ 1-5. According to Mr. Chrisco, Defendant Dr.
Joan Koprivnikar instructed her staff to “keep track of
every bad [thing] Chrisco does and if it comes down to it fib
a little.” Id. ¶ 4. These reports from
her staff prompted Dr. Koprivnikar to eventually place Mr.
Chrisco on long-term involuntary medication. Id.
Chrisco first alleges Dr. Koprivnikar illegally forced him to
take emergency medications after he engaged in a verbal
altercation with another inmate in September 2014.
Id. ¶ 2. He believes this was in retaliation
for his litany of grievances. Id. Dr. Koprivnikar
continued the retaliation by force medicating Mr. Chrisco
without investigating the underlying allegations.
Id. ¶ 9. On April 15, 2015, CDOC unit staff
reported he “put feces in his vent, made a slurry of
feces and urine in his toilet, refused to give back cuffs and
was banging his head.” Id. ¶ 5. However,
Mr. Chrisco explains that another inmate left the feces and
the mess in his toilet resulted from prison staff cutting off
his water supply. Id. ¶¶ 7-8.
11, 2015, the Involuntary Medication Hearing Committee met to
determine Mr. Chrisco's mental state. Id. ¶
13. At the hearing, Defendant Donald Gibson, a mental health
professional, reported on Mr. Chrisco's considerable
criminal history; his attempted attacks on other inmates and
prison staff; and his previous civil commitments or
hospitalizations in Colorado, Florida, and Illinois.
Id. ¶ 21. Defendant Dr. Pilgrim, a psychiatrist
at the prison, stated Mr. Chrisco once declared he would
“end up stabbing somebody if people [kept] making fun
of [him].” Id. ¶ 23. Defendant Kimberly
Weeks reported Mr. Chrisco previously had an altercation with
another inmate and refused to stop fighting even after being
sprayed with mace. Id. ¶ 26.
Dr. Koprivnikar's report insinuated Mr. Chrisco's
insanity and warned he may be a danger to himself and his
surroundings. Id. Mr. Chrisco believes Dr.
Koprivnikar also retaliated against him due to his unusual
religious beliefs. Id. ¶ 31. He is the founder
of Alchemical Christianity, a sexuality based religion
devoted to “Kabbalistic Ritual Invocations and sexually
prostrat[ing] himself in energetic connection to his divine
God the Universal Architect.” Id. ¶¶
129-30. After discovering Mr. Chrisco's “Holy Creed
of the Church of Alchemical Christianity, ” Dr.
Koprivnikar reported his religion as psychotic and delusional
thinking. Id. ¶ 29. Further, she described his
religious beliefs as “manifestation[s] of
‘Schizoaffective disorder.'” Id.
Hearing Committee decided to administer over thirty
psychoactive medications for 180 days. Id. ¶
58. These orders continued from May 2015 to March 2017.
Id. ¶ 84. Although he admits to cheating his
medication most of the time, Mr. Chrisco received three
muscular injections of Halidol and a few doses of Zyprexa.
Id. ¶ 85. He claims he has an increased risk of
diabetes and liver disease, reduced sex drive, sciatica-like
nerve pain, anxiety, permanent brain damage, weight problems,
and depression due to the involuntary medication.
Id. ¶¶ 86-87.
on these factual allegations, Mr. Chrisco filed his Amended
Complaint on August 28, 2017. Am. Comp., ECF No. 17. Mr.
Chrisco brings nineteen claims for relief. Id. Only
twelve of these claims are relevant to my present analysis,
each of which relates to his involuntary medication. Claim
Sixteen asserts Defendant Richard Raemisch violated his First
and Fourteenth Amendment rights. Id. ¶¶
117-22. Claims Fourteen and Fifteen allege infringements on
his Fourth and Fifth Amendment rights. Id.
¶¶ 106-15. Claims Two and Eleven assert behavior
Mr. Chrisco alleges constituted cruel and unusual punishment.
Id. ¶¶ 15, 84-87. Claims Eight, Twelve,
Thirteen, Fifteen, and Seventeen assert equal protection
violations. Id. ¶¶ 40-42, 89- 104, 115,
124-31. Claim Seven addresses an infringement of the
Establishment Clause. Id. ¶¶ 36-38. Claim
Three asserts Dr. Koprivnikar violated his Ninth Amendment
right to privacy. Id. ¶ 17. Lastly, Claim Four
alleges an infringement of his Fourteenth Amendment due
process right. Id. ¶ 23.
responded to the Amended Complaint by filing the present
Motion to Dismiss in Part. Defs.' Mot., ECF No. 50. As to
Mr. Chrisco's claims for monetary relief against
Defendants in their official capacities, they assert
entitlement to sovereign immunity. Id. at 9.
Defendants claim they are entitled to qualified immunity to
ten of Mr. Chrisco's claims. Id. at 9- 25. They
contend Claim Three is an improper Ninth Amendment claim.
argues the claim against her is barred by the applicable
statute of limitations. Id. at 13. Mr. Chrisco
responded to Defendants' motion on March 19, 2018.
Pl.'s Resp., ECF No. 82. Defendants filed their reply on
April 2, 2018. Defs.' Reply, ECF No. 85
Dismissal under Fed.R.Civ.P. 12(b)(1)
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.”
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case, but only a
determination that the court lacks authority to adjudicate
the matter. See Pueblo of Jemez v. United States,
790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing federal
courts are courts of limited jurisdiction and may only
exercise jurisdiction when specifically authorized to do so).
A court lacking jurisdiction “must dismiss the cause at
any stage of the proceeding in which it becomes apparent that
jurisdiction is lacking.” Id. (citing Full
Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th
Cir. 2013)). A Rule 12(b)(1) motion to dismiss “must be
determined from the allegations of fact in the complaint,
without regard to mere [conclusory] allegations of
jurisdiction.” Groundhog v. Keeler, 442 F.2d
674, 677 (10th Cir. 1971). The burden of establishing subject
matter jurisdiction is on the party asserting jurisdiction.
Pueblo of Jemez, 790 F.3d at 1151. Accordingly, Mr.
Chrisco in this case bears the burden of establishing that I
have the jurisdiction to hear his claims.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two prong analysis. First, I must
identify “the allegations in the complaint that are not
entitled to the assumption of truth, ” that is, those
allegations which are legal conclusions, bare assertions, or
merely conclusory. Id. at 679B80. Second, I must
consider the factual allegations “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
Dismissal of a Pro Se Plaintiff's Complaint
federal court must construe a pro se plaintiff's
pleadings “liberally” and hold the pleadings
“to a less stringent standard than formal pleadings
filed by lawyers.” Smith v. United
States, 561 F.3d 1090, 1096 (10th Cir. 2009).
“[The] court, however, will not supply additional
factual allegations to round out a plaintiff's complaint
or construct a legal theory on plaintiff's behalf.”
Id. (citing Whitney v. New Mexico, 113 F.3d
1170, 1173B74 (10th Cir. 1997)). The Tenth Circuit
interpreted this rule to mean:
[I]f the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so despite the plaintiff's failure to cite proper
legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity
with pleading requirements.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, this interpretation is qualified in that it
is not “the proper function of the district court to
assume the role of advocate for the pro se litigant.”
Id.; see also Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989) (“[W]e will not supply additional
facts, nor will we construct a legal theory for plaintiff
that assumes facts that have not been pleaded.”).
Motion to Dismiss requires me to determine whether they are
immune from suit. Mr. Chrisco has failed to state claims for
substantive due process violations, compelled speech, an
unlawful “seizure” and/or imprisonment of his
mind/spirit, Eighth and Ninth Amendment violations, equal
protection violations, and Establishment Clause violations.
However, the face of the Amended Complaint does not make
clear that Claim Four is barred by the statute of
limitations, and, therefore, I cannot recommend dismissing
this claim at the pleading stage.
Mr. Chrisco asserts many of his claims against Defendants in
their individual capacities. Thus, I must determine whether
Defendants are entitled to qualified immunity. Qualified
immunity protects a public official whose violation of a
plaintiff's civil rights was not clearly established at
the time of the official's actions. See, e.g., Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an
entitlement not to stand trial or face the other burdens of
litigation. Ahmad v. Furlong, 435 F.3d 1196, 1198
(10th Cir. 2006). “A qualified immunity defense is only
available to parties sued in their individual
capacity.” Beedle v. Wilson, 422 F.3d 1059,
1069 (10th Cir. 2005). “When faced with a qualified
immunity defense, the plaintiff must establish ‘(1)
that the defendant's actions violated a federal
constitutional or statutory right; and (2) that the right
violated was clearly established at the time of the
defendant's actions.'” Id. at 1069
(quoting Greene v. Barrett, 174 F.3d 1136, 1142
(10th Cir. 1999)). I find Defendants sued in their individual
capacities are entitled to qualified immunity over Claims
Two, Seven, Eight, Eleven, Twelve, Thirteen, Fourteen
Fifteen, Fifteen, Sixteen, and Seventeen.
also assert they are entitled to sovereign immunity from any
monetary relief Mr. Chrisco seeks against them in their
official capacities. Defs.' Mot. 8. I do not construe the
Amended Complaint to seek more than injunctive relief from
Defendants in their official capacities. Am. Compl. 25-26,
ECF No. 17. However, to the extent Mr. Chrisco may seek
monetary relief, I dismiss these claims. See Will v.
Mich. Dept. of State Police, 491 U.S. 58, 71 (1989)
(“We hold that neither a State nor its officials acting
in their official capacities are ‘persons' under
§ 1983.”). Because Mr. Chrisco clearly asserts
claims against Defendants in their official capacity for
injunctive relief, I will address the constitutionality of
Claim Sixteen Fails to State a Cause of Action.
Sixteen alleges Mr. Raemisch, in both his individual and
official capacities, infringed on Mr. Chrisco's First and
Fourteenth Amendment rights by implementing a policy that
compelled him to falsely answer questions during his
involuntary medication hearings. Am. Compl. ¶¶
117-22, ECF No. 17. Mr. Raemisch argues the questioning did
not constitute compelled speech, because it related to the
health and safety of Mr. Chrisco, prison staff, and other
inmates, rather than political or ideological issues.
Defs.' Mot. 22-24, ECF No. 50. Mr. Chrisco proposes the
prison created a “Catch-22” situation in which he
is compelled to falsely admit to his mental illness or deny
it and continue forced medication. Pl.'s Resp. ¶ 53,
ECF No. 82. According to Mr. Raemisch, the three questions
were directly related to the Involuntary Medication
Hearing's purpose, and therefore did not result in a
constitutional violation. Defs.' Reply 10, ECF
No. 85. I agree and recommend the District Court find Mr.
Chrisco has failed to allege compelled speech or substantive
due process violations.
First Amendment Compelled Speech Violation
clearly established “the government may not compel the
speech of private actors.” Axson-Flynn v.
Johnson, 356 F.3d 1277, 1283 (10th Cir. 2004);
Wooley v. Maynard, 430 U.S. 705, 714-15 (1977);
W.Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624,
642 (1943). The First Amendment “includes both the
right to speak freely and the right to refrain from speaking
at all.” Wooley, 430 U.S. at 714. However, a
prisoner's First Amendment liberties are inevitably
restricted. Pell v. Procunier, 417 U.S. 817, 822
(1974). “[A] prison inmate retains those First
Amendment rights that are not inconsistent with his status as
a prisoner or with the legitimate penological objectives of
the corrections system.” Id. (emphasis added);
see Jones v. N.C. Prisoners' Union, 433 U.S.
119, 119 (1977) (prohibiting formation of prisoners'
labor unions); seealso Bell v. Wolfish,
441 U.S. 520, 520 (1979) (restricting inmates' receipt of
hardback books). To evaluate prisoners' rights cases, I
must inquire “whether a prison regulation that burdens
fundamental rights is ‘reasonably related' to
legitimate penological objectives, or whether it represents
an ‘exaggerated response' to those concerns.”
Turner v. Safley, 482 U.S. 78, 87 (1987);
Washington v. Harper,494 U.S. 210, 224 (1990)
(“[T]he standard of review  adopted in
Turner applies to all circumstances in which the